Citation Nr: 22013533 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-27 922 DATE: March 9, 2022 REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for liver cancer is remanded. Entitlement to service connection for portal vein thrombosis is remanded. Entitlement to service connection for left total hip replacement is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1970 to August 1972, including service in the Republic of Vietnam. Unfortunately, the Veteran passed away in December 2012. The Appellant is the Veteran's surviving spouse, and she has been substituted as the Appellant in this appeal with respect to the service connection claims for hepatitis C, liver cancer, portal vein thrombosis, and left total hip replacement. This appeal before the Board of Veterans Appeals (Board) arose from September 2013 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied entitlement to service connection for left hip total replacement, portal vein thrombosis, liver cancer, and hepatitis C, all originally on an accrued benefits basis, prior to adjudication of the Appellant's substitution request, and denied entitlement to service connection for the cause of the Veteran's death. Entitlement to service connection for hepatitis C In his September 2012 claim, the late Veteran asserted that he had contracted hepatitis during his service in Vietnam. During an August 2012 for private liver cancer consultation, the Veteran reported that he believed he had acquired hepatitis C in Vietnam. In multiple statements, the Appellant has asserted that the Veteran became sick and was hospitalized in Vietnam, just before returning home, and shortly after his return from deployment, including in 1974. She asserted that additional records needed to be obtained, and indicated that the Veteran's records were in Missouri and Arkansas. Clarification is required. Notably, it is unclear whether all of the Veteran's service treatment records (STRs), including those pertaining to his Vietnam service, have been obtained and associated with the claims file. In this regard, the late Veteran had also asserted since September 1972 that he had been involved in a jeep accident, injuring his knee; however, neither these records nor records pertaining to treatment for hepatitis in Vietnam or following his deployment have been associated with the claims file. Accordingly, remand is required in order for the Agency of Original Jurisdiction (AOJ) to make necessary efforts to ensure that the Veteran's complete STRs are associated with the claims file. 38 C.F.R. § 3.159. Additionally, in May 2013, the Appellant provided authorization, on VA Form 21-4142, for VA to obtain the late Veteran's private treatment records pertaining to treatment for hepatitis and liver cancer from a Dr. Beeler at University Hospital in St. Louis. Records from University Hospital or Dr. Beeler do not appear to have been associated with the claims file. While the AOJ sent a letter to University Hospital in June 2013 requesting these records, and while the Appellant was provided with an initial June 2013 notice indicating that the treatment records had been requested, there is no further indication in the record that additional attempts were made to obtain the records, or that the appellant was notified that the records had not been obtained. VA laws and regulations provide that at least two attempts should be made to obtain authorized private record, unless notified that records do not exist or additional attempts would be futile, and that claimants are to be provided adequate notification of the inability to obtain records. See 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c), (e). Finally, given the Appellant's and the late Veteran's assertions as to the onset of hepatitis during service, including during the process of receiving post-service medical treatment for hepatitis C, and evidence of post-service diagnoses and treatment for hepatitis C, remand of this claim is also required in order to obtain a VA opinion addressing the etiology the hepatitis C, once all available evidence has been obtained and associated with the claims file. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for liver cancer and portal vein thrombosis The evidence of record appears to indicate that the Veteran's liver cancer and portal vein thrombosis were related to his diagnosed hepatitis C. Accordingly, in addition to the required development noted above, a VA opinion must be obtained addressing whether the Veteran's liver cancer and/or portal vein thrombosis were at least as likely as not etiologically related to his active service, or caused or aggravated by the claimed hepatitis C. See id. Service connection for left total hip replacement As noted above, the late Veteran had asserted since September 1972 that he was involved in a jeep accident during his active service. He further asserted in a September 2012 claim, and the Appellant has asserted in multiple statements since, that his claimed hip disability was also the result of the reported in-service jeep accident. Thus, given the late Veteran's and the Appellant's assertions that the Veteran suffered hip disability as a result of the reported in-service jeep accident, and post-service evidence reflecting left hip degenerative joint disease, and required left hip replacement, in addition to noted required development to obtain any outstanding STRs, remand is also required to obtain a VA opinion addressing the etiology of the claimed hip disability. See id. Service connection for the cause of the Veteran's death The late Veteran's death certificate indicates that the underlying causes of his death were liver cancer and liver cirrhosis. Notably, however, his terminal treatment records have not been associated with the claims file. These records should be requested on remand. Accordingly, these matters are hereby REMANDED for the following action: 1. Take all appropriate action to obtain any outstanding service treatment records, to include records associated with the Veteran's Vietnam service, to specifically include any records of a jeep accident on or about April 11, 1971, and records of treatment, including any hospitalization, for hepatitis, as reported by the late Veteran and the Appellant. Document all requests for missing records, as well as all responses, in the claims file. 2. Send a letter to the Appellant asking her to clarify the Veteran's treatment for hepatitis during and in the years proximate to his separation from service (including reported treatment in 1974), with approximate dates and locations of post-service treatment and hospitalizations. Ask the Appellant to provide clarification with respect to her assertion that the Veteran's hepatitis treatment records were located in Missouri and Arkansas. Additionally, ask the Appellant to provide records of any and all of the Veteran's treatment or hospitalization for hepatitis, including during service, in her possession. 3. Also, ask the Appellant to provide, or to provide VA with authorization (on VA Form 21-4142) to obtain, all outstanding private treatment records pertinent to the claims on appeal, to include the late Veteran's terminal treatment records leading up to the time of his death. Specifically, request that the Appellant provide new authorization to obtain the late Veteran's treatment records from Dr. Beeler at University Hospital. Make two requests for all authorized records unless it is clear after the first request that a second request would be futile. Ensure compliance with the procedures set forth in 38 C.F.R. § 3.159. 4. After the above directives have been completed, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain opinions as to the etiology of the claimed hepatitis C, liver cancer, and portal vein thrombosis. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record, the examiner should provide opinions as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the Veteran's hepatitis C, liver cancer, and/or portal vein thrombosis had their/its onset during service or were/was otherwise medically related to service, to include the reported treatment for hepatitis during service. If either liver cancer or portal vein thrombosis is deemed to not be at least as likely as not etiologically related to the Veteran's service on a direct basis, also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that such disability was caused, or aggravated (made worse) beyond its natural progression by the claimed hepatitis C. In addressing the above, the examiner must consider and discuss all relevant lay evidence, to include the late Veteran's and the Appellant's competent assertions as to the Veteran having been treated, including by means of hospitalization, for hepatitis during, and immediately after, his active service, and any other assertions as to the nature, onset, and continuity of the claimed disabilities. The examiner must provide reasons for all opinions. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Also, arrange for the claims file to be reviewed by an appropriate VA examiner to obtain opinions as to the etiology of the claimed left hip disability. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability), that the claimed left hip disability had its onset during service or was otherwise medically related to service, to include the reported jeep accident during service. In addressing the above, the examiner must consider and discuss all relevant lay evidence, to include the late Veteran's and the Appellant's competent assertions as to the Veteran having suffered hip injury as a result of the reported jeep accident during service, and any other assertions as to the nature, onset, and continuity of the claimed left hip disability. The examiner must provide reasons for all opinions. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Appellant until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Appellant is also advised that she has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. DAVID R. SEATON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.